1990 PLP 1452 (CLC)

‑‑‑‑S. 15‑‑‑Suit for pre‑emption ‑‑‑Pre‑emptors' right of pre‑emption was based on the plea of being legal heirs of vendor; owners of land in the 'Patti' and co‑sharers of land in question‑‑‑Defendants' plea that they having got the land in question in exchange transaction, right of pre‑emption could not be extended thereto, found favour with Trial Court resulting in dismissal of suit‑‑‑First Appellate Court, however, remanded the case for fresh decision‑‑‑Appeal against order of remand‑‑‑Appellants' contention was that it was no longer necessary to go into the question of true nature of transaction because even if such transaction was a sale, pre‑emption suit could not succeed for the reason that qualification of being legal heir of vendor or owner of land in Patti was not recognized by Islamic jurisprudence as spelt out in Said Kamal Shah's case reported as P L D 1986 SC 360; as for qualification of being a co‑sharer, it was available for claiming right of pre‑emption but before doing so it was necessary to make Talabs, which having not been made in the suit, pre‑emptors could not succeed on that ground also‑‑ Record showed that decree in pre‑emptors' favour had been passed before the crucial date viz. 31st, July 1986‑‑‑Contentions raised by appellants were support by case‑law cited by him‑‑‑Remand of appeal as ordered by First Appellate Court on the issue of true nature of transaction would be exercise in futility because even if transaction was deemed to be of sale, still pre‑emptors could not success on the ratio of judgment of Supreme Court‑‑‑Order of remand made by Fir Appellate Court was set aside and judgment and decree of Trial Court dismissing suit of pre‑emptors was restored. Government of N.W.F.P. through Secretary, Law Department v. Mali Said Kamal Shah P L D 1986 SC 360; Sardar Ali and others v. Muhammad A and others P L D 1988 SC 287; Ghulam Oadir v. Nawab Din P L D 1988 SC 70 and Mst. Sara Begum v. Ibrahim and 4 others P L D 1989 SC 314 rel. Sh. Abdul Aziz for Appellants. Nemo for Respondents. Date of hearing: 23rd May, 1989. Facts giving rise to this appeal are that one Jahana gave certain land to the appellants, Zain‑ul‑Abidin and others, by way of exchange. On this, the respondents, Ahmad and others, filed a suit for pre‑emption alleging that the exchange was, in fact, a sale. Their plea was that they had superior right of pre emption for being legal heirs of the vendor, Jahana, owners of land in the patti if which the disputed land lies and co‑sharers of the land in dispute. The suit was heard by the Civil Judge, Mandi Baha‑ud‑Din, District Gujrat, before whom ii was conceded by the appellants that the respondents possessed the above qualifications on which their claim was based. It was, however, denied by them that the transaction in dispute was actually a sale. Their plea in this regard found favour with the learned Civil Judge with the result that the suit was dismissed by him. On this, the respondents went in appeal which was accepted by the Districi Judge, Gujrat, and the suit remanded to the learned Civil Judge for frest decision. View taken by the learned District Judge was that the issue relating to the nature of the transaction in question had not been properly decided by the learned Civil Judge. This appeal is directed against the order of remand made by the learned District Judge.

2. It was contended by learned counsel for the appellants that it is no longer necessary to go into the question of true nature of transactions in dispute because even if it was a sale the respondents' suit could not succeed. Argument proceeds that qualification of being legal heirs of the vendor or owner of land in the patti are not recognized by Muslim Law as spelt out in Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (P L D 1986 Supreme Court 360) (Shariat Appellate Bench). As for the qualification of being a co‑sharer, it is available for claiming right of pre‑emption but before so doing it is necessary to make Talabs (demands). Plea of learned counsel for the appellants was that since no decree was passed in favour of the respondents before 31st July, 1986 and there was no allegation or evidence to the effect that Talabs were made by the respondents before filing the suit for pre‑emption, they could not succeed even as co‑sharers of the land in question. In this connection, reliance was placed by him on Sardar Ali and others v. Muhammad Ali and others (P L D 1988 Supreme Court 287), Ghulam Qadir v. Nawab Din (P L D 1988 SC 701) and Mst. Sara Begum v. Ibrahim and 4 others (P L D 1989 SC 314). Respondents have not turned up to say anything to the contrary. Contentions raised by learned counsel for the appellants are supported by the case‑law cited by him. Therefore, agreeing A with him, I hold that, in the circumstances mentioned above, dismissal of the suit of the respondents cannot be helped. Remand of the appeal to the learned District Judge or remand of the suit to the learned trial Court would, therefore, be an exercise of futility, order of remand made by the learned appellate Court is, accordingly, set aside and the judgment and decree passed by the learned Civil Judge restored. Appeal is disposed of as aforesaid leaving the parties to bear their own costs throughout. A.A./Z‑152/L Order accordingly.